Decades' worth of rape kits are finally being tested, but what's next?

Thursday

Feb 22, 2018 at 3:00 PM

Jessica Contrera of The Washington Post

He wanted me to see the boxes. They were piled six or seven high, and there were so many stacks on the shelves it was hard to take them in all at once. The other aisles of the Virginia Beach Police Department's evidence storage unit were filled with guns and knives, hard drives and cash piles - objects that had been used to do terrible things to people. But these boxes - rape kits - contained what was left on a person's body when something terrible had already been done.

"I wanted you to see that each one is a victim," said Lt. Patrick Harris, who had brought me here. "Each one has a name and a story behind it."

The stories, I knew, went like this: A woman said she was sexually assaulted. She was told that, to prove it, she would need to go to a room where she would be examined from the hairs on her head to the skin beneath her toenails. She was swabbed, plucked, prodded and photographed. When it was over, every bit of what had been taken off her body was slid into small bags, placed in one of these boxes and taped shut. Most likely, the woman assumed that her kit, full of potential DNA evidence, would be sent to a laboratory to be tested.

In the case of these kits, they were not. Today, the Justice Department recommends that all rape kits associated with a reported crime be submitted for DNA analysis. But up until just last year, there were no national requirements or guidelines on what to do with them. Most states had no laws dictating which kits should be tested, meaningevery police department could have its own rules about what evidence to test, keep or throw away. Some even let individual detectives make those calls. What happened to a woman's rape kit could depend not only on what state she was in, but which side of a county line she was on, or even who was on duty when she asked for help.

The results of this haphazard system have been well documented. In New York City, an estimated 17,000 kits went untested. In Houston, there were 6,000. In Detroit, Los Angeles and Memphis, there were more than 11,000 each. Over the past two decades, the "rape kit backlog" has been in the news so many times that now, slowly, the problem is being fixed across the country. Under pressure from activists and legislators, states and cities big and small are counting their kits and sending them to be tested. And then, they are beginning to quietly struggle with a far more complicated challenge: What happens once the kits come back?

That was what Harris, head of violent crimes investigations in Virginia Beach, had been trying to figure out. On the shelf in front of us were 344 kits that had been returned from the lab in 2017. Some were nearly two decades old. 344 names, 344 stories. For months, Harris and his colleagues had been debating a question: Should every victim whose name was on this shelf be notified that their kit had finally been tested? Or would reminding someone of their rape - out of the blue, years later, with no promise of a solution - cause them unnecessary harm?

The experiences of other cities offered no obvious answer. "I didn't see them wrestle with any issue as deeply, with as much worry and compassion, as this one," says Rebecca Campbell, a researcher who spent three years observing the handling of Detroit's untested kits. "This one brought them to their knees." In Detroit, it was ultimately decided that, at least at first, victims would be notified only if their kits resulted in a "hit," meaning the DNA found in the box matched a person in the Combined DNA Index System, a national database of offenders better known as CODIS.

Houston tried a different model. A hotline was set up and publicized, so that any victim who wanted information about their old kit could ask for it. Then, police and prosecutors combed through the CODIS hits and decided which cases actually had a chance of moving forward in the criminal justice system. Victims were notified only if their cases seemed "actionable."

"What's at stake is the well-being and mental health of sexual assault victims," says Noël Busch-Armendariz, a researcher who was involved in Houston's process. "You never know where people are in their lives and what support systems they have or don't have ready for them."

In Louisville, however, all victims were notified that their old kits were tested - even if not a speck of another person's DNA was found in the box. Lt. David Allen of the Louisville Police sees it this way: "It's their information. It belonged to them to start with, and we owe it to them to follow up."

Even the organization of a famous television actor had tried to figure out what to do. The Joyful Heart Foundation - created by Mariska Hargitay, star of "Law &amp; Order: Special Victims Unit" - had been instrumental in pressuring states to count their untested kits, and in 2016, the nonprofit released a 159-page report on victim notification. The consensus? "There was no agreement," says researcher Courtney Ahrens. It wasn't that the advocates she interviewed disagreed with police, or police disagreed with mental health professionals. There were disagreements within all of the groups she studied, even the victims themselves. Some said, "That's my body in that kit." They wanted to be notified by a knock at their front door, no matter what the results. Others were horrified at that idea. What if, they asked, the perpetrator of the assault was living in the same house?

In Virginia, this dilemma would ultimately pit police, prosecutors, advocates and lawmakers against one another, making the situation far more complicated than they ever intended. Everyone wanted to do the right thing for victims; there was just no way to know what that was.

In 2014, the Virginia legislature called for a count of untested rape kits.There were, it turned out, 2,902 kits in the state that had never gone to a lab. The oldest was from 1985.

The state's attorney general, Democrat Mark Herring, had chaired a task force focused on sexual assault on college campuses; now, he wanted to take on the state's rape kit backlog. As the legislature passed a bill ensuring all future kits would be tested within 60 days, Herring secured $3.4 million in grants to pay for the testing of the older kits at a private lab. Then his office drafted another piece of legislation that would require law enforcement agencies to notify victims that their kits had been tested. The bill's chief patron was state Sen. Barbara Favola, D-Arlington. It passed both houses without a single dissenting vote and was signed into law by then-Gov. Terry McAuliffe in March 2017.

The choice of words in the law (and the ones left out) set the course for everything that happened next: "In the case of a physical evidence recovery kit that was received by a law-enforcement agency prior to July 1, 2016, and that has subsequently been submitted for analysis" - meaning, the rape kits that were previously untested - "the victim, a parent or guardian of a minor victim, or the next of kin of a deceased victim shall be notified by the law-enforcement agency of the completion of the analysis and shall, upon request, receive information from the law-enforcement agency regarding the results of any analysis." The law, it appeared, mandated that all victims be contacted.

With more than 300 untested kits in its possession, Virginia Beach had the most of any jurisdiction in the state. It was the first to send its kits to the lab, the first to get them back, and the first to have to follow the new victim notification law.

Lt. Harris heard about the law from the department's deputy chief, Bill Dean. They played out the scenario: "Do we call up a victim and say, 'Remember that rape from 20 years ago?'" Harris asked. " 'Well, we've got the DNA test back, but we still can't do anything with it.' "

It wasn't that he didn't want to do anything with it - if more than 300 kits meant detectives could go out and catch more than 300 rapists, he would be thrilled to do just that. But Harris knew this initiative likely wouldn't lead to 300 or 100 or even 10 convictions. Unlike how things work on TV, DNA evidence is rarely the magic ingredient in putting someone behind bars. For the majority of victims, he suspected, their cases still couldn't be proved before a judge or jury.

As the testing results came back from Bode Cellmark Forensics over the course of 2017, Harris and a prosecutor combed through each case file associated with the kits, searching the previous detectives' notes to try to find something they could use. So far, of the 344 kits sent to the lab (all of which belonged to women), only 49 resulted in a "hit" - a match in the national CODIS database that would tell Harris whose DNA was found on the woman's body. There was only one case of those 49 where the victim hadn't already named that person as the perpetrator.

In most cases, he found the same challenges that have long made sex crimes one of the hardest detective jobs. Rape is almost always a crime that happens behind closed doors. There are rarely witnesses, and the people involved are rarely strangers. "The scenario is a boyfriend, or a recent acquaintance, someone they met at some type of drinking establishment. There is a very high chance that the victim knows the offender," Harris says. Again and again, the cases come down to consent: If a suspect readily admits he and the victim had sex but claims it was consensual, then the fact that his DNA was found in the kit often doesn't help. And while the rape kit examination also involves a search for physical damage, it's rare to find evidence of it.

Still, there was reason for optimism in some cases. Some of the old kits had never been sent to the lab because victims told the detectives they no longer wanted the investigations to continue. It was clear how much detectives' tactics for dealing with victims had evolved as they were trained in the ways trauma can affect a person's behavior. In an old case file, for instance, a detective might describe a victim as "uncooperative." Maybe, now that time had passed, and with the promise of being treated better, a victim might be willing to re-engage.

One of the cases with potential involved a married woman who had attended a party with her friends nearly a dozen years ago. When she had gone upstairs to lie down, she had said, a man she knew came into the room and forced himself on her.

She reported it, underwent a rape kit examination, and named the suspect. But the kit was never sent to the lab, and the suspect was never interviewed because, according to the detective's notes, the woman backed out of the investigation. The file said she told the detective she never wanted to hear from him again.

Harris assigned the case to Sgt. Shelly Meister, the head of the department's Special Victims Unit. (Like other departments across the country, Virginia Beach had renamed its sex-crimes unit to match the name of the "Law &amp; Order" show.) If this woman agreed, Harris told the sergeant, they would move forward with the investigation of her case. Meister spent days tracking down the victim, who had moved to another state. Then, one evening just before dinnertime, she called the woman's cellphone. When no one answered, she left a purposely vague voice mail saying she was calling because she had some information to share.

Fifteen minutes later, Meister later recalled, her phone rang. When she picked up, a man was on the line. "Why are you calling?" he asked, clearly shaken. "Why did you upset my wife? How dare you leave a voice mail?" Meister apologized, explaining that she could not share why she was calling but would like to speak with his wife, if she was interested in calling back.

Thirty minutes later, Meister's phone rang again. "Why are you calling me?" the woman asked, and Meister began to explain. The testing of her kit had resulted in a DNA hit, and the hit matched the suspect she had named all those years ago. Meister told her that the kit had never been sent, given that she had indicated she no longer wanted to hear from the detective.

"I never said that," the woman interrupted, and then the story came pouring out. When she told her friends, they didn't believe her. They said she had gotten drunk and gone upstairs because she wanted to have sex with the man. Her husband at the time didn't believe her. It eventually destroyed her marriage and, for a number of years, her life. But she had gotten better. She was remarried now. Happily married, she said. Her new husband didn't know anything about the rape. "Why are you trying to ruin that for me?" she asked.

Meister kept apologizing. She didn't know why the detective wrote that; he didn't work here anymore, she said. She explained that now things were different, that they could reinvestigate it all. Was this something she might like them to look into? "Absolutely not," the woman said.

"OK, you don't have to decide now," Meister told her. "You could call me in five years and decide to do it then." There is no statute of limitations on rape in Virginia. "All the power is in your hands," Meister said. The woman said she would think about it and get back to her by the end of the week.

She never called. Meister went into Harris' office and told him what happened. If that was how someone responded when their case could actually be reopened, they wondered, what would happen when they notified all the people whose cases they knew hadn't changed?

But it appeared they had no choice. In 2016, when they'd first begun preparing for the return of the kits, the Virginia Beach Police Department had gathered its most experienced SVU officers, victim advocates from the community and representatives from the city prosecutors' office to devise a plan. They decided to follow in the footsteps of Houston, which notified only those victims whose cases police and prosecutors agreed were "actionable," meaning the investigation could be reopened. They planned to set up a hotline that any victim could call to get information about their kit.

Then the victim notification law passed, and they weren't sure if their plan would still work. So in the spring of 2017, they regathered the team and set up a meeting with representatives from the state attorney general's office, where the law had been drafted. The word most people used to describe that meeting to me was "heated." The Virginia Beach team came away discouraged. As sure as they were that it was not the right thing to do, it appeared they would be violating the law if they did not contact all 344 victims.

Virginia Beach's chief prosecutor, Colin Stolle, conducted an independent review of the law and came to the same conclusion: All victims had to be contacted. And because the law said "shall be notified," setting up a hotline didn't count.

"'Shall' means something very different than 'may,'" Stolle told me. "It is an affirmative requirement that the police department take action."

And so the question became how to take that action. In September, the team gathered again to discuss their options. They worried about notifying victims with a phone call, given what happened when Meister left that voice mail with the woman who had remarried. They considered having detectives and advocates make the notifications in person, but that, too, seemed problematic.

"I've stated this a number of times. I don't think having a police car show up in front of a victim's house is the way to go," argued Kristin Pine, the chief programs officer at the area's YWCA, which offers every person who receives a rape kit examination an advocate to go through it beside them. In all the years that she had worked with victims of sex crimes, she had seen how devastating reminders of the assault could be. Some women she'd counseled still called her every year on the anniversary of their rape.

"A letter is the most passive," Pine told the group. The other advocates in the room agreed. A letter could be sent via certified mail, so the woman whose name was on the envelope would be the only one who could sign for it. They could make it vague - avoiding words like "rape" or "SVU," in case another person saw it - but include the date the crime was reported, so the victim would know what it was about.

"So," Harris asked the group, "is everybody in agreement that a letter, in some form, is the best option?" Around the table, everyone on the team nodded. The meeting ended, and Pine headed back to the YWCA, thinking about what it might be like for the victims she has known to receive that letter. "How does the saying go?" she asked me. "The road to hell is paved with good intentions, right?"

---

I wanted to talk to the people with those good intentions, who had decided the law should require that all victims be contacted. As a reporter, I'm taught to distance myself from questions of policy; it's not my job to take a side. As a woman, I wondered whether I would want the police to contact me had it been my kit on the shelf.

"The reality is that the response you are anticipating might be the exact opposite of what you expect," said Kristine Hall, who, as then-policy director for the Virginia Sexual and Domestic Violence Action Alliance, helped craft the notification law and accompanied the representatives from the attorney general's office to the "heated" meeting in Virginia Beach. "The victim I might expect to slam the door in my face might say, 'I can finally close this chapter. I can move on and stop wondering.' The person who is told, 'We found your assailant,' might slam the door in my face and say, 'I put this away 30 years ago.' " As she saw it, the legislature had done the right thing by ensuring that all victims would be contacted.

When I interviewed state Sen. Favola, I assumed she would make a similar case. But when I asked during a phone interview in October about the law she had sponsored, it was as if we were talking about another piece of legislation entirely. "In my bill, only those who have a DNA hit are notified," Favola told me. The law, she said, required notification of victims only when a kit resulted in a match in CODIS, the national database. In Virginia Beach, that would mean only 49 people, instead of 344.

"Let me see what it says in the bill here," she continued. I explained that the law makes no mention of DNA hits or CODIS. "But I know that was the intent," she countered. "That is what we explained to the (Senate) committee. Even though we didn't spell it out specifically in the bill, I just felt there was no real purpose in notifying survivors if you didn't have any new information."

Perhaps she had misunderstood what the attorney general had wanted to happen, I thought. I had heard over and over from those in Virginia Beach that representatives from Herring's office insisted all victims must be contacted. The police departments in Fairfax and Chesterfield counties - two of the next jurisdictions to receive their kits back from the lab - said the same. They, too, were planning to reach out to every victim.

When I interviewed Herring, he did stress the importance of victims being allowed to know what happens to their kits. "I have talked to survivors about this issue, and I've heard directly from them about how being allowed to participate in their case, being informed about the results of their test, helps give them closure," he said.

But when it came to what the law required, his interpretation differed from both the one put forward by Favola and the one understood by the police. According to Herring, the key criterion was whether any DNA from someone other than the victim was found in the kit, even if that DNA could not be matched to a person in a national database. "If there is DNA present, whether there is a match or not, it would require notification," he said.

I explained that Virginia Beach was soon going to notify all victims - not because they felt it was the right thing to do, but because representatives from Herring's office had told them it was what the law required. "My understanding is that if there were no results, meaning there was no DNA, that they are not required to be notified," Herring repeated. "But I will go back and double check."

He did, and the next day, his press representative Lara Sisselman emailed me. Now, Herring was in line with Favola. "I know there was a little bit of confusion when you sat down with AG Herring yesterday, so I just wanted to reach out to clarify any miscommunication," Sisselman wrote. "The Victim Notification Law requires law enforcement to notify a survivor when a tested kit yields a result that is a hit in CODIS."

But this still put Herring's interpretation of the law at odds with the police departments' understanding. I felt certain that, now that the attorney general's office was aware of the discrepancy, it would reach out to Virginia Beach and other police departments to inform them that they were not required to notify all victims. Maybe someone would apologize for the confusion or the imprecise wording of the law.

When I drove to Virginia Beach in November to watch the letters be sent, however, I arrived to find more than 300 of them on Harris's desk, not 49. They hadn't heard anything from Herring's office. As I looked at the envelopes, a part of me wanted to blurt out, "You don't have to send all of those!" But at the time, I didn't know if that was true. The Virginia Sexual and Domestic Violence Action Alliance had told me notifying all victims was the intention of the law. The Virginia Beach prosecutor's review of the law had reached the same conclusion. If I were to obstruct what was already in motion, I'd be stopping more than 200 victims from receiving their letters. I'd be taking a side in the difficult debate over whether they should be notified. I knew that wasn't my job.

Compiling all the letters had taken Harris' detectives weeks. So many of the victims had moved away, or had been in Virginia Beach only as tourists. Some had died, and so they had to search for a close family member to notify instead. Some had gone on to see their assailant arrested and found guilty, without the kit ever being tested. But because their kits were included in the 344, even they would be getting a letter now.

"On July 1 2017, the state of Virginia passed new legislation requiring municipalities to reach out to people who reported a crime in the past when an analysis of the evidence related to that report has been completed," the letter said. "The Virginia Beach Police Department is contacting you because your previously reported crime with Offense Number (number here) falls into this category and we would like to provide you with your options to obtain more specific information regarding these developments."

Harris had been trying to imagine how the women would react when they read these words. He didn't know how many of them would call. But he did know that, because his department had to protect their privacy, I would never get the chance to talk with them, or ask them how they felt about being contacted.

So that morning, before he mailed the envelopes, he suggested that we go see the rape kits. We walked down the aisle slowly, reflecting at the sight of the boxes. The only women who wouldn't receive one of the letters on Harris' desk were the ones he and his detectives had called, asking for permission to reopen their cases. Every woman they tried had said no. They had already moved on.

---

In all of this, there was a missing link. In interpreting what the law required, Virginia Beach and other police departments had received guidance from representatives of the attorney general's office. Much of that guidance, according to local police, had come from a woman named Lisa Furr, who had been coordinating the kit-testing project since its inception.

I had been asking to talk with her since September. In November, two weeks after Virginia Beach sent out the letters, the interview was finally arranged. I planned to drive down to Richmond but was told I could ask my questions only by phone, with a press representative on the line.

Furr had a reputation among the state's victim advocacy community for being a straight shooter, with a good heart and the right intentions. She was cordial on the phone, explaining her job and the importance of making sure all past and future kits were tested. And she maintained that all along, she had told police they were required to send notifications only to those whose kits resulted in a CODIS hit. "We have said that repeatedly to you and others," she said.

Why, then, would multiple police departments be notifying all victims, when they were deeply concerned about the harm that could cause? "I don't know," she said repeatedly.

The attorney general's office insists that Furr's recollection is correct and that, at the Virginia Beach meeting, there was a misinterpretation about the attorney general's official position on notification. "I don't believe that anyone from our office would have told any law enforcement agency they were required to notify all survivors whose kits are tested. We were consistent on that point throughout the legislative process and after," spokesman Michael Kelly would later email me.

The police officers, prosecutors and local victim advocates who were in the "heated" meeting with Furr disagree; they are confident she insisted all victims be notified. The police departments in Chesterfield and Fairfax were still planning to do just that. And in Virginia Beach, throughout November, the consequences of that strategy were finally being revealed.

The first call came on Nov. 9, three days after the letters had been sent. It rang in the office of Jennifer Messick, the police department's victim advocate, who had been sitting at her computer, sipping iced tea. She picked up her phone without pausing to brace herself, the way she would come to do in the weeks ahead. "Virginia Beach Police Department, this is Jennifer. May I help you?" she answered. The woman on the phone, Messick later recalled, was crying. She had received a letter. She wanted to know what was going on. Her case was more than a dozen years old.

Messick explained slowly and calmly: the kit, the requirement that they notify her, the fact that this didn't mean the status of her case had changed. "Why would you do this?" the woman asked, still crying. Messick wanted to explain that she hadn't been the one to do this, but it hardly mattered. She asked if the woman would like to speak to a detective. She offered to connect her to counseling services. The woman declined and hung up the phone.

One call came from a woman who received a letter about an in-law of hers. Messick looked up the case number and realized this was one of the cases in which the victim had died. The detectives had found an address for someone they thought was the victim's next of kin. It was not. Now this woman was asking what she was supposed to do with the information that, more than a decade before, a relative she hadn't been very close to had reported a rape.

Another call went directly to Lt. Harris. When he picked up, the woman on the line was hyperventilating. "What does this mean?" she asked. "Is he getting out of jail?" Harris, confused, quickly pulled up her case file. The man who assaulted her had been arrested and was serving time. Harris tried to calm her, explaining that her kit was tested only because of a change in policy. This didn't mean anyone was getting out of jail, he said. The man had years left on his sentence.

That evening, the woman called back, begging for confirmation that when the man was released, they would call and warn her. "Promise me," she said.

---

By the end of December, the Virginia Beach police had received 28 calls. Harris and Messick kept hearing the same phrases: I thought this was done. I put this behind me. They kept answering the same questions: What does this change? Is there anything I have to do? Why now?

In other cities, notifications had led to breakthroughs, where a victim, reminded of her assault after all these years, came forward with information that changed a case. In Louisville, there had been a case the lieutenant was certain would never be accepted by a prosecutor. Any detective, he said, would have agreed. Then they notified the victim, and because of new statements she made, a serial offender has been charged with her assault.

In Virginia Beach, however, there was no such moment. Meanwhile, an important debate about what a law should do was now overshadowed by confusion about what the law did do. Something had clearly gone wrong inside the creaky machinery of government. In December, I called and emailed Lisa Furr again. She never responded. But two days later, police departments across the state received an email from her, announcing she was leaving the attorney general's office for a job in the nonprofit sector. She also wanted to clarify, she wrote, the requirements regarding the notification law. "Notification of victims should occur in all cases where there have been 'hits' in CODIS," the email said.

After receiving that message, the police in Fairfax and Chesterfield changed their plans. A dismayed Lt. Harris replied to her, asking how it was possible that her instructions had suddenly changed. She thanked him for his feedback but did not answer his questions. He emailed the person managing the kit-testing project in her absence and says he received no response.

Maybe he would call the attorney general, Harris said. Or maybe what was done was done. He had so little time to dwell on it all. There were 55 new sex-crimes cases in November, and 42 in December. A woman said she was abused by her youth pastor. A woman reported going to a bar, going home and waking up with a man on top of her she didn't remember inviting in. There were more victims who, to prove what happened, would need to go to a room where they would be swabbed, plucked and prodded. More names, more stories. More evidence to be tested.

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